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2001(4) Crimes 267 (SC)
Supreme Court of India
(From Allahabad High Court)
K.T. Thomas & S.N. Variava, JJ.
Ram Prakash Pandey —Appellant
versus
State of U.P. & Anr. —Respondents
Criminal Appeal No. 880 of 2001
(Arising out of SLP (Crl.) No. 1970 of 2001)
Decided on 31-8-2001
Counsel for the Parties :
For the Appellant : Ms. Rachana Srivastava, Advocate.
For the Respondent No. 1 : Prakash Kr. Singh and A.S. Pundir, Advocates.
For the Respondent No. 2 : Dinesh Dwivedi, Sr. Advocate, Shashinder Tripathi and M.P. Shorawala, Advocates.
Important point
High Court has granted bail for a non-bailable offence alleged to be committed second time on likely delay in investigation and on medical ground ignoring provisions of Section 437 Cr. P.C., 1973 in clear case of tempering of the eye witnesses and when ailment was curable in prison.
Headnote:Criminal Procedure Code, 1973 —Section 437—When bail may be taken in case of non-bailable offences—Respondent 2 previously convicted of an offence punishable with life imprisonment—Released on bail—Alleged to have killed an eye witness—Two eye witnesses of this incident retracting statements made under Section 164 of Cr.P.C. to police—Respondent-2 again applying for bail—Granted by High Court on likely delay in investigation and on medical ground—Whether correct? (No)—Appeal allowed—Order granting bail set aside (IPC 1860—Sections 302 r/w 34 and Cr. P.C. 1973—Section 164).
Held : In our view the High Court has dealt with the matter in a most cursory manner. Bail has been granted ignoring the provisions of Section 437 of the Criminal Procedure Code. (Para 11)
Thus a person who has been previous convicted of an offence punishable with life imprisonment shall not be released on bail unless there is no reasonable ground for believing that the person has committed the offence and/or there are special reasons to do so. In this case it is to be seen that the co-accused is still absconding. Two witnesses have already retracted their statements. There are still eye witnesses, who have directly connected the 2nd Respondent and assigned a specific role to the 2nd Respondent in the murder of the deceased. Thus at this stage it could not be said that there is reasonable ground for believing that 2nd Respondent has not committed the offence. No special reasons for granting bail have been indicated by the High Court. The alleged ailment of the 2nd Respondent is also not such as required releasing him on bail. The 2nd Respondent can always apply to the jail authorities to see that he gets the required medical treatment. In our view the Order of the High Court granting bail cannot be sustained. We accordingly set aside the Order. 1st Respondent is directed to ensure that the 2nd Respondent is taken into custody forthwith. The Appeal stands disposed of accordingly. There shall be no Order as to costs. (Paras 12, 13 and 14)
Judgment
S.N. Variava, J.—Leave granted.
2. Heard parties.
3. This Appeal is against an Order dated 29th September, 2000 by which the High Court of Allahabad has granted bail to the 2nd Respondent.
4. Briefly stated the facts leading to this Appeal are as follows :
The Appellant is the 1st informant and husband of one deceased Hem Lata Pandey. The said deceased Hem Lata Pandey had given evidence against the 2nd Respondent, as an eye witness, in a case of murder of the wife of the 2nd Respondent. This had resulted in the conviction of the 2nd Respondent by the Trial Court. The trial Court has given a sentence of life imprisonment to the 2nd Respondent.
5. The 2nd Respondent filed an appeal. Pending appeal the appellate court granted him bail. Apprehending danger to her life the deceased Hem Lata Pandey had applied to the Government for protection. She had even filed a petition in the High Court of Judicature at Allahabad. That petition has been disposed of by the High Court with a direction to the Home Secretary to consider the representation made by the deceased and take appropriate action. Inspite of this direction no protection was given to the deceased.
6. It is a case of the appellant that on 31st January, 2000 at about 2.30 p.m., when the appellant, his wife, two sons and two servants were in their farm to irrigate the crop, the 2nd Respondent and the co-accused by name Vinod Kumar suddenly appeared at the farm, opened fire on Hem Lata Pandey with their guns and killed her.
7. The appellant, therefore, lodged an FIR on the same day. A case has been registered as Crime No. 21/2000 under Section 302 read with Section 34 of the IPC. The co-accused Vinod Kumar is absconding and has not yet been arrested.
8. One further fact which need to be mentioned is that the two servants who were present had earlier given their statements to the Police under Section 164 of the Criminal Procedure Code. Those two servants have now filed affidavits before the trial Court denying that they have witnessed the incident.
9. On these facts the Session Court rejected, on 13th July, 2000, the bail application of the 2nd Respondent.
10. The 2nd Respondent then applied for bail in the High Court. Inspite of the fact that the 2nd Respondent had already been convicted and sentenced to life imprisonment and the fact that two eye witnesses have now retracted their statements even before the trial has started, the High Court has chosen to grant bail to the 2nd Respondent only on the following grounds :
“It is not disputed that the investigation of the case has been entrusted to C.B./C.I.D. by the order of the Chief Minister, Copy whereof is annexure-10. It is also not disputed that the C.B./C.I.D. normally takes an year or so in concluding the investigation. The allegations of ailment of the applicant are not specifically denied. Only this much is stated that documents are forged and have been prepared to obtain bail.
Considering facts and circumstances of the case, I am of the view that the applicant may be released on bail.”
11. In our view the High Court has dealt with the matter in a most cursory manner. Bail has been granted ignoring the provisions of Section 437 of the Criminal Procedure Code, Section 437 of the Criminal Procedure Code read as follows :
“437. When bail may be taken in case of non-bailable offence.—(1) Where any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a court other than the High Court or Court of Session, he may be released on bail, but—
(i) such person shall not be so released if, there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, im
